My Shingle

The Florida Bar won’t let lawyer promise to help you get rid of “that vermin you call a spouse”

by Carolyn Elefant on March 27, 2007 · 4 comments

in Ethics & Malpractice Issues, Legal Profession Trends, Marketing Ethics

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Ah, I suppose it was just a matter of time before the Florida Bar went after divorce lawyer Steven Miller, who ran these provocative ads that insult overpriced downtown lawyers and promise to help clients “rid themselves of that vermin [they] call a spouse.” According to this story (3/27/07), when Miller submitted his ad for review by the Florida Bar, found that the ad is a “verbal depiction” whose language promises a particular result, which is prohibited under Florida law.

When I posted about Miller’s ad several months ago, I applauded him for targeting that underserved part of the population that can’t always afford high priced legal counsel. At the same time, I explained that I wasn’t a fan of his confrontational style, not because I found it offensive or unprofessional or deceptive but rather, because I feared that it would attract the types of uncompromising, litigious clients who eventually devolve into “clients from hell.”

Just like with its decision banning use of animals like pit bulls, sharks and snakes as logos, it seems to me that the Florida Bar’s prohibition on Miller’s ad is a stretch. In the “animal logo” decision, the Florida bar determined, among other things, that consumers might not realize that pit bull on a logo is simply a metaphor and instead, might conclude that the lawyers really behaved like pit bulls. Here, the bar’s conclusion that the bar promises a result is untrue. In the ad, Miller says that by signing up for his service “you’re on your way to getting rid of that vermin you call a spouse,” but he doesn’t promise that he will succeed. That’s not a guarantee of a result in my view.

If Miller’s ads are truly offensive – and don’t kid yourself, that’s the only reason why the bar wants them eliminated – then the market will decide their success. Clients turned off by Miller’s ads won’t use him and as a result, he’ll change his approach. But if consumers have a need for low cost or aggressive, straight talking lawyers, they’re entitled to that option – and without Miller’s ad, consumers might never learn of that option. Moreover, in our technologically enabled age, the bar has an option as well: let the bar put up its own video on YouTube and explain to consumers what’s wrong with Miller’s ads. The bar doesn’t need to ban them.

  • http://ricardolaw.com Mike W.

    Here’s the thing: even if he did say that he guaranteed that his clients would “get rid of” their spouses… that’s not misleading or deceptive. Why? Florida is a no-fault divorce state. Just about the only way to fail to get a divorce in this state is to never have been married in the first place.
    The Florida Bar is out of control with its regulations on free speech.

  • http://www.GreatLegalMarketing.com Ben Glass

    This is consistent with the Florida Bar’s continued trouncing of the First Amendment. I have faxes in my office from Florida lawyers where phrases such as “I guarantee you won’t have wasted your time (by reading my consumer guide) have been disallowed as ‘promising a result.’ In another letter, the bar said it would prosecute an attorney who said that he would “calm their concerns” in an initial free consultation. From everything I can see from the lawyers who send me stuff the Florida State Bar advertising committee seems to be a bunch who seek to justify their existence (and the Florida Bar’s outrageous advertising “review” fees that you are required to pay every time you want to run any promotional piece) by jealously being silly with the First Amendment. Each member of that committee would do well to read Professor Rodney Smolla’s new book, The Law of Lawyer Advertising (Thompson-West) before embarking on a single new review of a lawyer’s proposed advertising.
    Ben Glass,
    Fairfax, VA

  • http://www.lawbizblog.com Ed Poll

    Well written comment.

  • http://blogs.law.harvard.edu/ethicalesq David Giacalone

    Thanks for covering this issue again, Carolyn. One quibble from me: as I suggest here, the Florida Bar (like its cousins across the nation) dislike both the “offensiveness” of the Miller firm’s ad and the fact that he is offering cheaper lawyering services that might drive down legal fees. For another example, see my post the Florida Bar and you the people, at SHLEP. There, sellers of do-it-yourself forms are the Bar’s target (UPL and consumer protection excuses, of course). And, although the FBA says consumers who need to save money can find forms at courts and through the Bar, their website in no way directs the public to those options or to the helpful Self-help centers found in courthouses around the state.

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